Saturday, January 29, 2005


Waterboarding Isn't Torture?

According to Michael Chertoff, the latest Bush Administration nominee for Homeland Security Secretary, waterboarding isn't torture.

The New York Times reported this under the bland headline "Security Nominee Gave Advice to the C.I.A. on Torture Laws." Had Mr. Chertoff given good advice, this might actually been a strong qualification for the post. Unfortunately, that was not always the case:
Mr. Chertoff's previously undisclosed involvement in evaluating how far interrogators could go took place in 2002-3 when he headed the Justice Department's criminal division. The advice came in the form of responses to agency inquiries asking whether C.I.A. employees risked being charged with crimes if particular interrogation techniques were used on specific detainees.
One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning.
Source: New York Times(Emphasis added)
Mr. Chertoff did determine some proposed torture methods were probably illegal:
...Mr. Chertoff opposed some aggressive procedures outright, the officials said. At one point, they said, he raised serious objections to methods that he concluded would clearly violate the torture law. While the details remain classified, one method that he opposed appeared to violate a ban in the law against using a "threat of imminent death."

Mr. Chertoff and other senior officials at the Justice Department also disapproved of practices that seemed to be clearly prohibited, like death threats against family members, administration of mind-altering drugs or psychological procedures designed to profoundly disrupt a detainee's personality. It is not clear whether the C.I.A. or any other agency proposed these techniques.
Source: New York Times (Emphasis added)

At the end, however, Mr. Chertoff joined Alberto Gonzales in advising that inflicting pain during interrogation wasn't torture if the CIA got a doctor's note first:
Mr. Chertoff left the door open to the use of a different set of far harsher techniques proposed by the C.I.A., saying they might be used under certain circumstances. He advised that they could be used depending on factors like the detainee's physical condition and medical advice as to how the person would react to some practices, the officials said.

In responding, Mr. Chertoff's division said that whether the techniques were not allowed depended on the standards outlined in an August 2002 memorandum from the Office of Legal Counsel that has since been disclosed and which defined torture narrowly. That memorandum,...said inflicted pain, for example, qualified as torture only if it was of a level equivalent to organ failure or imminent death.
Source: New York Times (Emphasis added)
Is offering incompetent legal advice regarding the scope of anti-torture treaties a prerequisite for members of the Bush Cabinet?


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